By Mikhaila Sung
Section 230 of the Communications Decency Act (CDA) represents a unique moment of consensus between Republicans and Democrats. Brokered in the 1990s, Section 230 is the product of a Republican and a Democrat wanting to agree on an issue. Section 230 protects internet intermediaries from being held liable for the content posted by its users – even if they participate in some moderation practices. The internet at this time was in its infancy. As such, matters relating to the internet were inherently less controversial than abortion or taxes. This brief moment of consensus has since fallen away as advances in technology and unforeseen circumstances have caused polarized stances by politicians on technology related issues. As people leave office, new problems emerge and consensus becomes harder to keep by those who inherit the responsibility to maintain it.
In 1995, Stratton Oakmont Inc. sued Prodigy Services Co. for defamatory remarks. An anonymous user on Prodigy’s “Money Talks” forum claimed that Daniel Porush, the president of Stratton Oakmont Inc., had “committed criminal and fraudulent acts in connection with the initial public offering of Solomon-Page, Ltd.”  The plaintiff’s motion declared it acceptable to treat Prodigy Services Co. as the publisher of these comments. This decision became highly controversial because any internet company could be held responsible for content its users posted. This led to the insertion of Section 230 into the Communications Decency Act (1996). At stake were issues of liability, free speech, moderation, and defamation.  This decision would not only affect internet intermediaries, but anyone who used these types of websites.
The House of Representatives disagreed with the Prodigy ruling and “stated [their] intent to overturn the result reached in the prodigy case.”  This instance of consensus in the House of Representatives came from a member of each party wanting to show tangible evidence of unity between their political parties. Republican Chris Cox from California and Democrat Ron Wyden from Oregon strategized over lunch on the Hill how they could get bipartisan support for a cause. They decided on the internet. At this time, internet regulation was minimal and existing laws were not strong enough nor completely applicable.  Prodigy became the prime example. Internet company growth would be stalled and inhibited if internet companies could be sued for any and all of the content present on their sites. When Cox read about the Prodigy ruling, he believed he could find a solution; this became the Section 230 people know today.
Cox argued that websites were not publishers but instead intermediaries. This distinction changed everything.  These internet “intermediaries” could no longer be held responsible for content posted on their sites by users, even if they decided to moderate some of the content i.e. delete or refuse to post content. Section 230 was slipped into the Communications Decency Act (CDA). Representatives Cox and Wyden amended H.R. 1555 during a floor debate with House Amendment 744 on August 4, 1995; the House amendment passed 420-4.  The Communications Decency Act was passed relatively easily because its main focus was on child pornography: many people were reluctant to be seen as someone who voted against having more stringent regulation of pornographic material. There were, however, a number of people who believed this section infringed on Americans’ right to “freedom of speech.”  The CDA included vague terms like “indecent” and “patently offensive.” This controversy became the subject of the case Reno v. ACLU. In 1997, the Supreme Court removed these provisions from the CDA; Section 230, however, remained unscathed. 
In the case of Section 230, consensus was reached because of a desire to agree. As a relatively new field, the internet was not fully understood by many. California Representative Cox believed he had found a solution to the frosty partisanship plaguing the hill, as well as, the shaky laws affecting internet companies’ responsibility for moderating content. The internet could not be as controversial an issue as taxes or abortion were, and still are, because there was a lack of proper understanding on politicians’ part regarding its maintenance and utlization compatibilities. This did not, however, diminish the issues at stake. There was general agreement that there needed to be regulation – for example, children should not be able to view pornography. Most also agreed that the Prodigy decision would be detrimental to internet service providers’ ability to grow and exist if they were constantly being sued – this would be an implication of their categorization as the “publisher” of their users posts, comments, etc. A point of contention was the degree of regulation. A number of staunch proponents of freedom of speech worried that regulation of terms used would be an infringement of this right.
Cox and Wyden’s decision “to agree” was crucial in terms of consensus among Democrats and Republicans. The minutiae was less important because members of congress were not informed enough to see potential areas of conflict or problems. This does not mean that this decision should be taken lightly. Section 230 affects future federal and state rulings, users, internet companies, and “public figures.” Internet companies needed the government to not consider them as publishers, so they could be free from liability and thus be able to grow. Users did not like the idea of being regulated and wanted to protect their freedom of speech. Meanwhile, “public figures” wanted to protect their online image and the ability to sue for defamation. Issues at stake included regulation of moderation and liability for users’ behavior. In this situation, the stakeholders with the most power were Cox and Wyden. They made “the internet” an issue of bipartisanship. They did not take the time to listen to the voices of users, public figures, or internet companies. Wyden and Cox agreed and in a way that was all that mattered.
In an interview many years after Section 230 was passed, Wyden explains that “‘Chris Cox and [he] had been friends because [they] both liked to talk about ideas, and thought that not enough about government was ideas driven.’”  Crucial to understanding this situation is remembering that Cox and Wyden were already friends. Their desire to improve relations between Democrats and Republicans was the driving force behind consensus. They chose internet policy because it was not a partisan issue. As Cox said, “‘The idea that you’re limited to those handful of very predictable questions and answers is folly. So we decided to make a pact to think about cutting edge issues where people haven’t thought through it fully. They’d have to approach it without a knee-jerk response.’”  Consensus could be more easily achieved because controversy had not yet surrounded the issue. Members of Congress did not know enough to be deeply passionate one way or the other. This means that at the time Section 230 passed, the people were voting on an idea: whether or not internet companies should be considered publishers or intermediaries of content, and less so on concerns other stakeholders of the issue had on the matter.
Now, to the present day: Section 230 may not be as great as it seemed to members of congress in 1995. Cox and Wyden were nearsighted in what they thought Section 230 could do in terms of consensus. This moment of togetherness was not enough to extend to other areas of policy. The internet has also evolved since Section 230 was first put into place. Social media as people know it today did not exist in the 1990s. “Social media” websites which allow users to post their own thoughts, share articles, and more can reach huge audiences. This extreme influence that social media users can have over public opinion is a concern for some. A number of conservatives believe that the media has a “liberal bias.” They believe that they are being silenced through moderation practices. President Donald Trump is rumoured to be drafting an executive order to abolish Section 230. “Some Republicans believe that companies are using Section 230 as a cover to let them moderate content however they want, and are exercising anti-conservative bias in what they choose to take down.”  Furthermore, Republican senator Joshua Hawley introduced a bill in June that would get rid of the so-called “immunity” social media sites have.  These companies would be audited every two years by the Federal Trade Commission.  This bill has been criticized for its vagueness and lack of enforceability. Even now, members of congress within their own political parties cannot reach consensus. There are two major camps: those who think section 230 should be left as is and those who think it needs to be significantly altered. Democratic “Representative Nancy Pelosi recently called the law a ‘gift’ to Big Tech, implying that Congress should gut the law in order to fight the increasing dominance of the five largest tech companies.” While many dislike that Section 230 provides protection to Big Tech in a way that could be taken advantage of, many also understand that it would be detrimental to the growth of the internet, if websites like Facebook and Twitter were constantly being sued. According to Jeff Kosseff, a cybersecurity law professor at the United States Naval Academy: “Section 230 was intended to encourage moderation.”  This exploration and ability to experiment in terms of moderation was a happy medium for a long time. Even Wyden clarified that Section 230 was intended “to make sure that internet companies could moderate their websites without getting clobbered by lawsuits.” 
On the surface level, consensus seems to be about internet management policy, but this instance of consensus was actually the result of the issue being at its infancy. As a new issue, people could not really be polarized one way or another. What mattered was an idea that most would agree upon: it would not be conducive for growth if internet companies were being sued constantly. The effectiveness of this procedure came from a willingness to agree and a topic which could be agreed upon. Disagreements about the degree of moderation, freedom of speech, possible bias in the media were unforeseen. Time has unraveled these issues and shed light on issues of party polarization. Whether consensus can be found in the topic of technology and the internet today is a vastly different situation from the one members of congress in the mid 1990s faced. Though not impossible, it seems that members of Congress today are less willing to compromise on issues. Because members of Congress often vote along party lines, this unwillingness between parties to compromise means that, unfortunately, minority voices could be left powerless.
- DMLP Staff, “Stratton Oakmont v. Prodigy” Digital Media Law Project, Oct 15, 2007, http://www.dmlp.org/threats/stratton-oakmont-v-prodigy.
- Christopher Zara, “The Most important Law in Tech has a Problem,” Wired, Jan 03, 2017, https://www.wired.com/2017/01/the-most-important-law-in-tech-has-a-problem/. DMLP Staff, “Stratton Oakmont v. Prodigy” Digital Media Law Project, Oct 15, 2007, http://www.dmlp.org/threats/stratton-oakmont-v-prodigy.
- EFF Staff, “CDA 230: The Most Important Law Protecting Internet Speech”, Electronic Frontier Foundation, https://www.eff.org/issues/cda230/legislative-history/timeline.
- William A. Sodeman, “Communications Decency Act”, Encyclopedia Britannica, Oct 26, 2019, https://www.britannica.com/topic/Communications-Decency-Act.
- Kosseff, Jeff. Chris and Ron Do Lunch. In The Twenty-Six Words that Created the Internet , 58-59. Ithaca and London: Cornell University Press, 2019
- Rob Price , “Trump is Reportedly Planning an Attempt to Regulate Facebook and Twitter Over Alleged Anti-conservative Bias” Business Insider, Aug 09 2019, https://www.businessinsider.com/white-house-executive-order-section-230-tech-moderation-report-2019-8.
- Angela Chen, “What is Section 230 and Why Does Donald Trump Want to Change it?” MIT Tech Policy, Aug 13 2019, https://www.technologyreview.com/s/614141/section-230-law-moderation-social-media-content-bias/.
- Elliot Harmon, “Changing Section 230 Would Strengthen the Biggest Tech Companies” New York Times, Oct 16, 2019, https://www.nytimes.com/2019/10/16/opinion/section-230-freedom-speech.html.
- Joshua Geltzer, “The President and Congress are Thinking of Changing this Important Internet Law: But They Don’t Understand It” Slate, Feb 25, 2019, https://slate.com/technology/2019/02/cda-section-230-trump-congress.html.